While getting a prenup might not be the most romantic thing to do during your engagement, it might be one of the most important things you do. Yes, even more important than your venue, flower arrangements and wedding cake.

A prenuptial agreement, or a prenup, is a legally binding contract created by two people before they get married. A prenuptial agreement addresses separate property, property acquired during the marriage, and the rights each spouse has to the property if they divorce.

While it may be difficult to talk to your significant other about finances, prenups are a great way to reduce stress in the long run, since prior to marriage both parties will disclose their assets and liabilities, and both parties will have realistic expectations should the marriage end.

Because each spouse may have different goals in mind, it is essential for each spouse to be represented by a lawyer when signing a prenuptial agreement.

For a prenuptial agreement to be valid, it must be in writing and signed by both parties. Also, the spouse receiving and signing onto the agreement must have:

1. Received complete financial information about the other party prior to signing it;
2. Had at least seven days to review the agreement before signing it (or the opportunity to have it reviewed by an attorney)
3. Been represented by a separate attorney unless the spouse:
-received full information in writing about the terms and basic effect of the agreement, including any rights and obligations the agreement would nullify, and
-signed a separate document acknowledging receipt of such information, identifying the person who provided the information, and expressly waiving the right to an attorney.

Prenuptial agreements will generally be upheld as long as the terms are not in violation with the law or public policy. Family Law Code Section 1615 contains provisions relating to uninforcability of prenuptials to be carefully reviewed.

Reasons a California Prenuptial Agreement May Not Be Enforced

California law requires that both spouses be represented by separate attorneys in the negotiation and finalization of the prenuptial agreement for it to be valid. One attorney cannot represent both parties.

The court will also look to see whether or not the agreement was entered into voluntarily by both parties. There are a variety of factors that can be analyzed, including how long prior to the wedding the agreement was discussed, how informed the spouses were about the other’s finances, and more.

Portions of the prenup may not be upheld based on public policy. For example, child support and child custody & visitation provisions will not be enforced, because the court makes those decisions based on the best interests of the child, not the best interests of the parents.

Also, if the court finds that provisions of the agreement are unfair, they might not be upheld. For example, the court might look at a prenuptial agreement where one party has full citizenship and one party has no citizenship to be unfair because the party without citizenship may fear to lose the opportunity to become a citizen if he/she does not sign the prenuptial agreement.

Top San Diego Lawyers for Prenuptial Agreements

Do you need an experienced family law attorney to assist you with a prenuptial agreement? Are you getting divorced and believe your prenuptial agreement is not valid? Hire a lawyer you can trust to protect your rights. Call now at 800-769-4748 to schedule your free consultation with a seasoned family law attorney. We proudly serve clients in San Diego and surrounding communities, including Chula Vista, Coronado, Carlsbad, Encinitas, La Jolla, Oceanside, Ramona, San Marcos and Vista.